Common-Law Writs and Federal Common Lawmaking on Collateral Review
2002; Northwestern University School of Law; Volume: 96; Issue: 4 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Criminal Law and Evidence
ResumoINTRODUCTION Persons convicted of federal crimes have two primary means of obtaining collateral review1 of their convictions and sentences. They may avail themselves of congressionally created statutory remedies by filing motions to vacate their sentences pursuant to 28 U.S.C. (sec)2255.2 Federal convicts IMAGE FORMULA7 may also seek executive clemency by filing applications for a pardon or commutation of sentence with the United States Pardon Attorney.3 Recently, however, the legal and practical availability of these traditional avenues of collateral review has diminished. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) curtailed (sec)2255,4 and for the first time, (sec)2255 motions have a statute of limitations. In most cases, they must be filed within one year of the conclusion of direct appeal.5 AEDPA also tightened the standards for filing second or successive (sec)2255 motions. As a procedural matter, prisoners must now obtain permission from the court of appeals to file a second or successive (sec)2255 motion in the district court.6 Substantively, such motions are no longer permitted when newly discovered facts are only relevant to a prisoner's innocence of the sentence,7 or when based on a new rule of constitutional procedure made retroactive by a lower federal court but not yet declared retroactive by the Supreme Court.8 IMAGE FORMULA9 The reach and use of executive clemency has withered in recent years. The Attorney General's advisory regulations9 recognize two general forms of clemency: pardon and commutation of sentence or remission of fines. A pardon, which a prisoner attempting to demonstrate his innocence or egregious violations of his legal rights might seek, not generally available the expiration of at least five years after the date of release of the petitioner from confinement,10 placing pardon out of reach to an incarcerated person. Commutation of a sentence may be of greater utility because it does not have a five-year waiting period, but it more difficult to obtain, as the Pardon Attorney's commutation application frankly asserts: Commutation of sentence is an extraordinary remedy that very rarely granted.11 Neither form of relief may be sought until all other forms of judicial or administrative relief' have been exhausted.12 Not surprisingly, the number of pardons and commutations declined precipitously over the past forty years, from an average of 246 pardons and 17 commutations per year (including remissions of fines) under President Harry Truman to 49.5 pardons and 7.6 commutations per year under President Bill Clinton. 13 The shortcomings of these avenues of collateral review are likely to become more evident and more pressing in light of recent developments in the law. In Daniels v. United States,14 the Supreme Court held that a federal prisoner could not attack in a (sec)2255 motion most prior convictions that render him an armed career criminal, and thereby increase his federal sentence.15 This decision likely to leave many prisoners with no viable IMAGE FORMULA11 means of attacking their prior convictions, notwithstanding the dramatic impact they might have on the later federal sentence, because direct attacks on those prior convictions are likely to be procedurally barred as untimely (as many prisoners had no reason to attack their initial, smaller federal conviction); a subsequent (sec)2255 attack no longer available under Daniels and clemency rarely granted. Moreover, consideration of prior convictions becoming more and more prevalent, as the United States Sentencing Guidelines rely upon prior convictions in assessing a prisoner's criminal history category.16 Also, Congress often imposes greater statutory penalties on persons with prior convictions,17 and the immigration consequences of prior convictions are often dire,18 as the Supreme Court recently pointed out in INS v. …
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